Southwest Again Aims To Dismantle COVID-19 Refund Class

By Rachel O'Brien
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Law360 (August 3, 2020, 9:59 PM EDT) -- Adding a new plaintiff to a proposed class action against Southwest Airlines doesn't change the fact that the lawsuit is wrong in alleging that the airline is required to refund nonrefundable tickets canceled due to COVID-19, Southwest told a Pennsylvania federal judge Monday.

Southwest customer Adrian Bombin sued the airline in April, and on July 6, filed an amended complaint, adding another plaintiff, Samantha Rood.

"The addition of new plaintiff Samantha Rood, who canceled her own nonrefundable ticket, does not save the first amended complaint from dismissal," Southwest's second motion to dismiss said.

Bombin's suit alleges that when Southwest canceled flights as demand dropped at the beginning of the coronavirus pandemic, it should have offered full refunds, not just new bookings or travel credits.

Bombin claims Southwest is in breach of contract, and seeks to represent a class of all U.S. travelers who had their Southwest flights canceled since March 1 without an option for a refund.

Southwest filed a motion to dismiss on June 22, arguing its terms don't promise refunds for nonrefundable tickets.

The country's largest domestic air carrier argued it met its contractual obligations by offering the customers new flights or credits toward future travel.

Bombin, a Lancaster, Pennsylvania, resident, bought two round-trip tickets on Feb. 27 from Baltimore-Washington International Airport to Havana, Cuba, by way of Ft. Lauderdale, Florida, according to the complaint.

On March 20, the Cuban government announced it was closing its borders to non-Cuban citizens and Southwest canceled Bombin's flight.

He was offered a future travel credit instead of a refund, according to the suit.

Southwest argued that travelers in the suit "ignore the plain language" that states the airline will provide refunds for refundable tickets, not nonrefundable ones.

Rood, a Burbank, California resident, bought two round-trip tickets on Feb. 15 from Burbank to Phoenix for a mid-May trip.

Three times in March and April, Southwest emailed Rood, informing her that one of her flights was canceled and she was to be changed to another flight, both for her Phoenix-bound and her return flight, according to the amended complaint. Each time, she was informed that if those new flights were unacceptable, she could change to another flight of her choosing within either 14 days or 60 days of the original flight.

After the third change, Rood called customer service to cancel both flights and requested a refund because the new flight times were inconvenient, according to the amended complaint.

Like Bombin, instead of receiving a refund, she was told her only option was a credit for future travel.

Southwest argued Monday, the change to Rood's scheduled departure times was insignificant and doesn't make her eligible for a refund.

"Southwest's minor changes to the scheduled flight times after she booked them (a 15-minute difference on one flight and approximately one-hour difference on the other) did not convert Rood's nonrefundable fares into a different fare category under Southwest's contract of carriage," the motion said.

The airline said the language in the customer contract states that when Southwest cancels a flight, the airline has three choices: put the customer on another flight, refund the ticket or give a credit for future use.

The airline argued for passengers to be the ones with decision-making power, as they claim they are, the words "at the sole option of the passenger" would need to be inserted into its contract.

"However, this language does not appear in the contract of carriage, and plaintiff cannot require the court to revise the language of the contract of carriage to achieve his objective," the airline said.

In his suit, Bombin pointed to a U.S. Department of Transportation April 3 enforcement notice that reminded airlines that COVID-related cancellations or significant delays should entitle ticket holders to refunds. This, he said, was proof that Southwest was violating federal law by not refunding his nonrefundable tickets.

Reiterating the argument it made in its June motion to dismiss, Southwest said Bombin's reliance on the DOT notice has no bearing on the suit because the notice doesn't create a private right of action to enforce consumer protection rules against airlines, a remedy reserved only for the DOT.

The court should reject the proposed class "because it is not feasible to ascertain without extensive and individualized fact-finding the identity of the members of a class comprised of persons whose flights were changed to a time allegedly not 'within a reasonable time' of the original departure," the motion said.

Southwest also reiterated that Bombin's claim is pre-empted by the Montreal Convention, which governs international flights.

The suit should also be dismissed, Monday's motion said, because Southwest customers who bought their tickets on the company's app, like Bombin, agree to terms and conditions that prohibit filing class actions.

Southwest again asked that if the case is not dismissed, it be transferred to U.S. District Court for the Northern District of Texas, because the terms and conditions also require the user to consent "to the exclusive jurisdiction and venue of the state and federal courts in Dallas, Texas, in all disputes."

That venue is the correct one, the airline said, because Southwest's Dallas headquarters is where the airline decided to cancel flights and where refund policies are implemented.

Southwest notes that it gave Bombin a credit on March 27 toward a future flight, but on May 5 it refunded the $345.35 he paid for tickets, according to the June motion to dismiss.

"The fact that Southwest ultimately refunded plaintiff's fare subsequent to the DOT notice does not change the fact that Southwest did not breach the contract of carriage when it exercised its right to use a fare credit in lieu of cash for the refund," the motion said.

In April, similar proposed class action suits were also filed in the Northern District of Illinois against United Airlines and Mexican carrier Volaris.

Counsel for Southwest and counsel for Bombin and Rood didn't immediately respond to requests for comment Monday.

Southwest is represented by Todd A. Noteboom and M. Roy Goldberg of Stinson LLP and James T. Moughan of Bennett Bricklin & Saltzburg LLC.

Bombin and Rood are represented by James C. Shah of Shepherd Finkelman Miller & Shah LLP, Jeff Ostrow, Jonathan M. Streisfeld and Joshua R. Levine of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Hassan A. Zavareei of Tycko & Zavareei LLP and Melissa S. Weiner, Joseph C. Bourne and Daniel L. Warshaw of Pearson Simon & Warshaw LLP.

The case is Bombin v. Southwest Airlines Co., case number 5:20-cv-01883, in the U.S. District Court for the Eastern District of Pennsylvania.

--Editing by Michael Watanabe.

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